Supreme Court endorses the loss of historical identity of Jammu & Kashmir

 

Supreme Court endorses the loss of historical identity of Jammu & Kashmir

Despite from a party like BJP, Atal Bihari Vajpayee is often evoked when speaking of Kashmir. His phrase "Kashmiriyat (identifying with the culture and people of Kashmir), Jamhooriyat (Democracy), and Insaniyat(Humanity)" implies the need to keep in mind its uniqueness within the Indian subcontinent, its denizens and with a human touch. These words laid down how he intended to deal with Kashmir, which has a long and chequered history.  Being a predominantly Mutism state, located strategically, sharing border with Pakistan and China, Jammu & Kashmir(J&K) has suffered the most because of insurgency and militancy.  

The Article 370 of the Constitution of India had conferred a special status on J&K. It was a collective decision of the first Nehru’s cabinet that included Sardar Patel and Shyama Prasad Mukherjee- the founder of Jana Sangh- considering the sensitivity and volatile war situation, and the impending reality of J&K either accessing to Pakistan or remaining independent of the Union of India.

The Constitution Order 272 dated 5 August 2019 allowed the Union government to amend the Article 370 by suspending the Constitution Order (Applicable to J&K) of October 1954 and replacing the words “Constituent Assembly” by “Legislative Assembly” in clause (3) of the Article 370. The next day, the President had issued another Constitution Order 273, based on the Resolution of Parliament, revoking the special status of J&K. And on 9 August, Parliament passed the Jammu and Kashmir Reorganization Act, which bifurcated the state into two Union Territories – Jammu and Kashmir and Ladakh. All these path breaking changes, with far reaching consequences, were made in great haste without scrutiny by standing committees of parliament and discussion, in gross violation of the existing rules and procedures. It is important to remember that the J&K Assembly was dissolved and the newly created two union territories were brought under the President rule in December 2018.

As many as 23 petitions were filed in the Supreme Court challenging the manner in which the Article 370 was abrogated, and the state of J&K downgraded.  A five-judge constitution bench, comprising of Chief Justice   D.Y. Chandrachud, Justices S.K. Kaul, S, Khanna, B.R. Gavai and S. Kant- heard the petitions and delivered a concurring verdict on 11 December ,2023, after four years and four months, upholding the revocation of the special status of J&K. The Supreme Court either ignored or side-stepped certain undeniable facts, while delivering the verdict.

First, the Instrument of Accession signed by Maharaja Hari Singh of J&K in October 1947 was the same as the one signed by all other princely states that integrated into the Union of India. Thus, as this author said in his book Nehru and World Peace, J&K became an integral part of India. However, the special status to the J&K was conferred under the Article 370, considering the extortionary situation then prevailed, following the partition of India.  And all the provisions with respect to the state of J&K were temporary as the said Article stated. Pandit Nehru said in 1963 the special status was transitory. Nonetheless, the Article 370 was intended to operate till it was removed by Parliament under Article 368. 

Second, the procedure laid down for changing the provisions of the constitution was not followed while abrogating the Article 370 and revoking the special status of J&K.   The Article 368 provides procedure for amending the constitution. The Union government amended the Articles 367 and 370 without following the procedure. And imposing the President’s Rule preparatory to the intended revocation of special status without any reference to the state was a mala fide.  The   apex court’s message that Parliament, while a state is under President’s Rule, can do any act, with irreversible consequences., not only undermines federal principles, but also the basic structure of the constitution, as enunciated by the court itself. 

Third, bifurcation of a sate into union territories is not permitted by the Article 3 of the Constitution. The Article provides only for “Formation of new Sates and alternation of areas, boundaries or names of exiting states.”  It does not provide for downgrading an existing state into union territories.  That this is done for the first time in the case of J&K, is humiliating and deeply hurting the State and its people. The Center gave no reason for downgrading J&K into Union Territories, which had nothing to do with the revocation of state’s special status. The Supreme Court’s” failure to give its ruling on whether the Constitution permits the reorganization of J&K into two UTs is an astounding example of   judicial evasion. It is shocking that the Court chose not to adjudicate a question that arose directly from the use of Article 3 of the Constitution for the first time to downgrade a State. It undermines federalism and democratic processes to a frightening degree” (Editorial, The Hindu 12/12). Of late, the apex court has been avoiding adjudication of controversial questions. 

And fourth, the Court has endorsed the loss of historical cultural identity of J&K., as evident from the Centre’s downgrading of J&K and taking away its special status. The Court verdict declares that J&K is like any other state in the Indian Union, thereby depriving it of even the special privileges granted to other states, particularly Sikkim and Assam and the other Northeastern states such as Nagaland, Mizoram, Manipur and Arunachal Pradesh under the Article 371 to preserve their linguistic and cultural identity. The Court provided no alternative measure to protect the historical cultural identity of J&K, while stamping its approval of Centre’s action of abrogating the state’s special status.  After this verdict, nothing prevents the people from mainstream India to migrate to J&K, own property and land and settle in the state and erase its scenic beauty and distinct character- a 'heaven on earth'.  

Though the abrogation of the special status may have put the question of status of J&K at rest, it is doubtful whether the people of the state would honor the verdict.  The wounds are too severe to heal.  Mehbooba Mufti, reacting to the verdict, said, “It is nothing less than a death sentence not only for J&K, but for the idea of India." As Pratap Bhanu Mehta says, “The SC, in this judgment has, once again, obliged. The Court is trying to facilitate the government’s new approach to Kashmir, without reassuring anyone that it has the integrity to uphold the Indian Constitution, in whose name it speaks in full measure” (IE 12/12). 

 

 

 

 

 

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